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SUPREME COURT OF INDIA
K. JAGANNATHA SHETTY AND A.M. AHMADI, JJ.
Mir Mohd. Omar and others, Appellants
Versus
State of W.B., Respondents.
Criminal Appeal Nos. 467-468 of 1989 (arising out of Spl. Leave Petn. (Cri.) Nos. 1180-81 of 1989)
Decided on 8-8-1989.
Indian Penal Code,1860 – Section 302-34 and 364-34 – Criminal Procedure Code,1973 – Section 313 - Examination - Application for re-examination - Appellants-accused are facing trial for an offence under Ss. 302-34, I.P.C. and alternatively under Ss. 364-34, I.P.C. before City Sessions Court, 13th Bench, in Sessions - Prosecution examined in all 34 witnesses - Last witness examined is investigating officer - His examination went on for a number of days and came to an end - Public prosecutor filed an application proposing some more questions to be put to first appellant by way of re-examination under S. 313 of Code - On the same day, trial court by a considered order rejected that application – Held, court equally see no justification for High Court for giving liberty to prosecution to file an application for re-examination of PW 34 - In fact it will be seen from operative portion of impugned order High Court proceeds on assumption that PW 34 would be recalled for further examination - Here again it may be noted that prosecution has closed evidence - Accused have been examined under S. 313 of the Code - Prosecution did not at any stage move trial Judge for recalling PW 34 for further examination - In these circumstances, liberty reserved to prosecution to recall PW 34 for re-examination is undoubtedly uncalled for - There is yet another grave error committed by High Court - It has expunged the entire examination under S. 313 of Code of all the accused - Court fail to understand need for this extraordinary step - Assuming it was on account of its permission to re-examine PW 34, even in that case it would be sufficient to further examine the accused with reference to t additional circumstance, if any, appearing against the accused on such re-examination - It is open to the prosecution to invite attention of the Court if any incriminating circumstance is left out and not put to the accused - Court reserve liberty to prosecution in this regard - In the result, the appeal is allowed and order of the High Court is reversed - This order shall be communicated to trial court within two days by courier service - Parties should appear before the trial court to receive further orders - Appeal allowed.
Key Points: - The trial court examined 34 witnesses, with the last witness being the investigating officer, and then recorded statements of the accused under Section 313 of the Criminal Procedure Code (!) (!) . - The prosecution applied for re-examination of the investigating officer, which was rejected by the trial court, and this rejection was upheld by the High Court (!) (!) . - Section 278 of the Criminal Procedure Code limits the trial court's jurisdiction to correcting typographical errors without altering the substantive evidence (!) (!) . - The High Court erroneously permitted the prosecution to file a re-examination application and assumed PW 34 would be recalled, which was not justified (!) (!) . - The High Court expunged the entire examination under Section 313 of all accused, which was found to be an extraordinary and unwarranted step (!) (!) . - The case was transferred to the Chief Judge of the City Sessions Court due to alleged bias, but this became moot when the trial judge retired (!) (!) . - The appeal was allowed, the High Court order was reversed, and the matter was directed to proceed expeditiously preferably on a day-to-day basis (!) (!) . - The prosecution must invite the court's attention if any incriminating circumstance is left out and not put to the accused during examination (!) . - Parties were directed to appear before the trial court on August 14, 1989, to receive further orders (!) .
JUDGMENT
K. JAGANNATHA SHETTY, J. :— The special leave is granted, and the appeal stands disposed of by this order.
2. The appellants-accused are facing trial for an offence under Ss. 302-34, I.P.C. and alternatively under Ss. 364-34, I.P.C. before the City Sessions Court, 13th Bench, Calcutta in Sessions Trial No. 1 of November, 1987 (Session Case No. 5/87). The prosecution examined in all 34 witnesses. The last witness examined is the investigating officer (PW 34). His examination went on for a number of days and came to an end on March 16, 1989. On the next day that is, on March 17, 1989, the court examined the accused under S. 313 of the Criminal Procedure Code and recorded their statements.
3. On March 21, 1989, the public prosecutor filed an application proposing some more questions to be put to the first appellant by way of re-examination under S. 313 of the Code. On the same day, the trial court by a considered order rejected that application. The relevant portion of that order runs as under:
"I think the Ld.P.P. can argue all these points as the time of advancing arguments in this case and the accused need not be re-examined on this point under S. 313, Cr. P.C. The Ld.P.P. has also submitted that in question No. 6 and question No. 7 the word "these witnesses" should be replaced by the name of the witnesses. I think the names of the witnesses have already been put to the accused persons in the previous questions. So in the question No. 6 and question No. 7 the name of the witnesses need not be mentioned again. Then it has been pointed out that the question No. 4 in place of the words "you all", the question should be written as "Khurshed, Bhulu, Noor Alam and Tenea under your order. I think it is implied. If other accused persons did anything at the order of one partcular accused it is implied that all the accused persons committed the mischief. So on this point also the accused need not be re-examined again. Lastly, it has been pointed out that in question No. 2 in place of PW 12 Abdullah Daweed the words "PW 7 Md. Mein" should be written. On perusal of the evidence on record I find PW 12 Abdullah Dawood is also a witness of the occurrence and so the question need not be corrected. Discussing the above circumstances, the petition filed by the prosecution this day for re-examination of the accused persons under S. 313, Cr.P.C. for further re-examination is rejected."
4. On March 30, 1989 the public prosecutor applied for adjournment of the case on the ground that he would like to move the High Court against the aforesaid order dated March 21, 1989. The case was accordingly adjourned to April 18, 1989. It is said that in between these days some correction slip was filed in the Court seeking 25 corrections in the statement of PW 34. The said slip was not accompanied by any application nor was it served on counsel for the accused. The trial court, however, in the interest of justice rectified the typographical errors in the statement of PW 34 but refused to make other corrections which would have changed the substantive part of his evidence.
5. The State moved the High Court with Criminal Revision No. 641 of 1989 praying: (i) Corrections be made in the evidence of PW 34 as per slip supplied to the Trial Court; (ii) Additional statement of the first appellant under S. 313, Cr.P.C. be recorded in respect of questions proposed by the prosecution; and (iii) Transferring the case to some other Bench of the City Sessions Court as the trial Judge has acted with bias.
6. There was another revision application filed by Smt. Anushila Devi who claims herself to be a sister of the deceased Mahesh Kumar Agarwal and as a party interested in the case. She also sought transfer of the case from the 13th Bench to some other Bench in the City Sessions Court on the apprehension that there would not be a fair trial in the case.
7. The High Court on examination of the records found that the correction slip filed before the trial court was not part of
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